In the United Kingdom there are no specific free standing rights governing privacy, however, there are a number of laws helping to protect people’s right to privacy. This is mainly through the use of the Human Rights Act 1998 (HRA) which incorporates the fundamental rights set out in the European Convention on Human Rights 1950 (ECHR) into UK law.
Article 8 of the ECHR governs that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ it is a qualified right – one everyone is entitled to. It goes on to explain in paragraph two that the public authority will not interfere with this right except in certain circumstances, mainly those relating to public security and public welfare, it must also be lawful and necessary to interfere. The first condition is that the state intervention must be deemed lawful to not result in a breach of Article 8, therefore, the interference must have a legal basis – for example legislation or rules that have been created by a professional body.
Article 8 of the ECHR governs that ‘everyone has the right to respect for his private and family life, his home and his correspondence’…
The rule or law must also be clear, understandable and detailed enough to ensure that a person can regulate their activity in accordance with it. The second condition is that the interference must satisfy a set aim or objective. These aims and objectives include prevention of disorder and crime, protection of morals or health, protection of the freedom of others alongside those mentioned above. The final condition is that the intervention must be necessary in democratic society even if the first two conditions are satisfied then it still must be necessary and justified under Article 8 for the inference to occur. It must be proportionate to the lawful act or rules that are being used. These are judged against the extent of the interference and the nature of such interference and those deemed to go further than required will be considered disproportionate, therefore, are illegal and a breach of Article 8. Should it be possible for a less intrusive method to be used in order to gain the same information then that method will be used as opposed to breaching Article 8.
What measures are in place to prevent the media from publishing pictures you don’t want published?
…the best route to take to result in a successful action against a newspaper or broadcaster is through the tort laws…
There isn’t, unfortunately, a tort for breach of privacy, however, the HRA binds public bodies to comply with your convention rights, thus, binding courts and tribunals in doing the same. Therefore, should an action be brought against a private body by a private party regarding a breach of convention rights, the court can be asked to comply with the HRA in ensuring your convention rights are protected. The House of Lords developed a ‘law of confidence’ in Campbell v Mirror Group Newspapers  UKHL 61, providing protection for breaches of privacy, which have been committed by private bodies. It was further stated it would be better termed ‘misuse of private information’. Therefore, if information you believe you should have a ‘reasonable expectation of privacy’ over is published, an action can be brought for the misuse of that information. The term ‘reasonable expectation of privacy’, however, is very broad and it will be considered by the judge whether this has been satisfied or not. If so satisfied, an injunction can be taken out prohibiting publication and an award of damages may also be used to compensate the party against the infringement. If the judge rules in favour of the publisher then there will be no breach of Article 8 and there will be no entitlement to damages or an injunction.
So what does this have to do with the Royal Baby?
With regards to the Duke and Duchess of Cambridge and the recent media coverage of the birth of their baby, could it be considered a breach of their privacy with regards to how the media reacted upon the news of the impending birth? As early as two weeks before the actual birth, media were beginning to camp outside the Lindo Wing at St Mary’s hospital in London with camera’s galore all waiting for that special news that the Duchess had gone into labour. However, with all those cameras outside and even a helicopter overhead, did the media impose on the Royal Highnesses and breach their Article 8 right to privacy or breach the ‘law of confidence’?
During the time the Duchess was in labour, a helicopter was hovering overhead taking photos of the hospital, Lindo wing and crowds outside the hospital. It is unlikely this helicopter was able to get close up photos of the couple at the point it was in the air (which was around mid-day, and Kate was already in labour at this point), but had the helicopter got photos of the couple would this be against their Article 8 right and does this also extend to the photographers outside the hospital?
With regards to satisfying the ‘law of confidence’ certain circumstances of the case are taken into account the main points I will work through.
Is the party normally in the public eye? Are they an adult or child?
As they are members of the royal family, it is reasonably expected that they would be in the public eye more so than others. Also, with this being their first child it’s expected even more so as the public have a want, almost need, to see their future king or queen. It was also to be reasonably expected as a similar scenario occurred when Princess Diana gave birth to Prince William and again with Prince Harry. However, just because this has happened in the past does not mean that in the present it is still acceptable.
The nature of the activity, the place it was taking place and the intrusion caused?
The birth of a baby is not pretty but when giving birth to the future king or queen of the UK there was a little more pressure placed upon the Duchess. Therefore, giving the event and amount of disruption caused to the hospital (which was still trying to function as normal as possible), was it a necessary disruption and intrusion both on the Duke and Duchess, the staff and other patients at the hospital in order to obtain the pictures to publish in newspapers? Especially when it had been agreed that the Duke and Duchess would pose for pictures with their new baby once born? Was this an unnecessary interruption to all those involved when the reporters would still have got their photographs in the end.
Consent – completely absent or inferred?
Consent is required to publish pictures and the effects of publishing said pictures must also be considered with regards to how it may affect the people involved. Consent can be inferred in particular cases and it is likely that as the Duke and Duchess are widely in the public eye that it would be inferred that they would consent to pictures being taken of them during this time. However, the nature of the pictures and whether certain pictures were consented to would be examined here, for example, had the reporters tried to get a photo of Kate during her labour through a window and tried to publish that then it is likely that consent would be absent and the judge rule it as a breach of the law of confidence.
How did the publisher come to have this information?
It is unlikely that the photographs taken outside the hospital have been regarded as being obtained unreasonably and would, therefore, be allowed to be published. Had a photographer taken photos of Kate during labour through a window though, it is then likely that the methods of obtaining the photos would be regarded as unreasonable and, therefore, a breach of this rule.
Therefore, it is possible that the Duke and Duchess could have filed for an injunction against any photos taken that were not those agreed previously.
Based on this information it is likely that photographs taken from outside the hospital, including those taken by the helicopter, would be acceptable and able to continue to be published. As we saw, there were no objections to the photos that were published after the occasion. However, had photographs been taken through a window of Kate giving birth or in labour then it is likely that these would not be acceptable. They would likely be banned from being published as they would have been unreasonably obtained and it is unlikely she would consent to such a photo being published.
With regards to an Article 8 breach, it is likely that both sets of photos would be in breach as in neither case is there any legal justification for intervention of the state – there is no law that we must have photos of our future king moments after he has been born. There is also no set aim or objective to justify the intervention other than that of public nosiness and excitement. Finally, the methods used to obtain the photos certainly were not necessary, the media did not need to camp outside the hospital for over two weeks to get the photos they wanted as the royal couple had stated they would ‘pose’ for photos once the baby had arrived. Therefore, it is possible that the Duke and Duchess could have filed for an injunction against any photos taken that were not those agreed previously.